Govt's 2 questions regarding post-arrest silence violated Fifth Amendment and were not harmless

  (Rendell, Chagares, and Jordan, Circuit Judges)   


    In United States v. Shannon, Appeal No. 13-2389, 2014 WL 4401054, the Third Circuit reversed a jury verdict (WDPa) for conspiracy to distribute and distribution of five or more kilograms of cocaine, because the government’s questioning of Shannon about his post-arrest silence violated his Fifth Amendment right to remain silent. On cross-examination, a defendant opens himself up to such questioning in the limited scenario where he claims to have told police the same version of events upon arrest. However, this contrast with post-arrest silence must be “blatantly inconsistent,” not simply ambiguous. If there is a constitutional violation, the court applies harmless error analysis, asking whether the government can prove beyond a reasonable doubt that the error did not contribute to the verdict.


     At trial, over a Fifth Amendment objection which was summarily overruled, the government asked Shannon why he had not come forward earlier with his exculpatory version of the facts. Shannon then said he told his lawyer his version of events. The Court found that the government’s argument that the issue was not preserved “actually borders on frivolous” and a defendant does not specifically need to cite Doyle or Miranda when making this objection. Similarly, the Court found that the government’s arguments were “badly strained” and that the transcripts could not “comfortably bear” the government’s interpretation that Shannon opened the door. The Court found the government’s two questions regarding post-arrest silence violated the Fifth Amendment and the error was not harmless. The case was largely circumstantial, not overwhelming, and without the thousands of wiretaps or other sources corroborating Shannon’s link to the conspiracy, Shannon’s credibility “was likely important to the outcome of the case.”


     Although the Court focused on the Fifth Amendment, it also discussed other rulings in an extensive footnote. As for the District Court’s 404(b) and 609(b) ruling that two prior convictions over twenty years old should be admitted, judges are reminded they should “hesitate to admit twenty-year-old convictions when that evidence looks like propensity evidence.” With regard to an Allen instruction, judges are reminded that the model jury instructions are not binding and use of a different instruction is not necessarily erroneous. Judges should be careful when highlighting the need to dispose of cases and the burden involved in calling a new jury.